D. B. EDWARDS J .This is an application by judges summons dated 4th January 2007 for the plaintiff to be at liberty to sign final judgment in this action against the defendant/ respondent for the sum of Le 27.299,721/46 and costs as claimed in the statement of claim indorsed on writ of summons intituled CC 971/06 B. NO 76

The plaintiff applicant had issued a writ of summons intituled CC 971/06 B. NO 76 dated 30th November 2006 claiming inter alia the sum of Le 28,229,721/46. An appearance was entered and a defence filed . The plaintiff then applied for leave to enter summary judgment through the aforesaid Judges summons pursuant to Order 11 rule 1 of the High Court Rules as amended by Public Notice No 24 of 1964 . The application was supported by the Affidavit of Grace Hassan sworn to on the 4th day of January 2007 together with the several exhibits referred thereto to wit exhibits GH1 -GH10.

The defendants opposed the application on the grounds that the defence raised triable issues and that pursuant Order 11 Rule 8(b) of the High Court Rules 1960 the application should be dismissed with cost. He filed an affidavit in opposition & exhibit several documents to wit exhibits LSC1 - LSC3C

The Plaintiff in replying referred the court to pages 3, 4 & 5 of the case of AMINATA CONTEH VS APC SC.CIV APP.4/2004 unreported and submitted that the new test which binds this court is to examine the issues of law and fact raised and to determine whether the defendant has a good chance of succeeding. He referred the court to exhibit GH 4 as stating the plaintiff's position. He submitted that there is no evidence before this court that the Plaintiff Bank agreed to receive payments over a period of 36 months as the defendants are claiming. The bank offered to accept payment over a period of 18months. He argued that by paying 1 million Leones a month the defendant was insisting that the plaintiff bank accepts payment over a period of 36 months when the defendant has not provided consideration for the alleged promise to the bank to accept payments by installments. He further argued where consideration was absent, the agreement ought not be binding. Paragragh 10 of the plaintiff's Affidavit was a deposition to the fact that the defendant failed to provide consideration for the promise. He relied on the case of Foakes Vs Beer and Pinnels Case for the submission that the defendant had an obligation to provide consideration. He finally submitted that the defendant having resigned from accepting payment on the plaintiff's terms the plaintiff can now turn around on the alleged agreement and sue on the whole amount.

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I have perused all documents before me.The main issue in this matter is whether the defence filed by the defendant raised a triable issue . The defence as I see it, is a qualified admission of the debt- yes I have to pay you, but this money was paid to me , not in one lump some payment but several installments every month for period spanning over three years. I cannot in the,circumstances return to you the full lump sum. I must pay by installments. The said allegation was apparently implicit in the defence, paragraphs 1-3 thereof. The defence has stated that this defence was submitted well in advance of this summons for the plaintiff to know that there was a contention, such as would warrant the plaintiff not issuing out these judges summons, in which case, pursuant to order 11 rule 8 (b) this application ought to be dismissed. I, however, do not think it was pretty obvious that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave. The main reason for this is that the plaintiff in fact took it as an admission of the debt simpliciter. I would, however, say that the facts were such that it is probably right to label it as a qualified admission. There is a clear dispute as to how these installments should be paid which is central to the defence in view of what it was used for and how it was paid. The plaintiff require the defendants to pay in 18 monthly installments of Le 1, 736,091.88.each. The defendants insist on lmilllion per month in 36 monthly installments.. In view of this, the plaintiff insist that they are not bound by the promise of the defendant as there is no consideration. They cited Pinnel's case and the decision in Foakes Vs Beer as authority that they are not bound unless and until there is provision of consideration. In view of the disagreement reached insist they had the right to abandon the promise and recover the full amount.

It appears to me, however, that the facts of this case do not fall in all fours with FOAKES VS BEER (1884) 9 APP CASES AND PINNEL'S CASE (1602) ,5 CO REP . In those cases there were contracts already in existence which bound the parties; the defendant wanted to vary the terms of his obligation under those contracts ; obviously they needed to provide consideration . In this present case, I note that the plaintiff stated in Ex GH 4 "our policy on severance is that staff who are indebted must make an up front payment of their liabilities with immediate effect". Yet in view of this, the defendant chose to propose something different and the plaintiff chose to accept it. But the point is this was a policy and not an agreement. Even though it might create obligation. It seems rather unilateral rather than bilateral. If such policy is embedded in the terms and conditions of service it is different, but I note that the terms and conditions of service or bond supposing very well that they do exist were never pleaded . You don't need consideration to vary a policy.

I also hold that there may be case in saying that the payment ought to be paid in installments rather than one lump sum. In the usual course of business if some body accumulates a debt over a period of monthly payments over a period of time , he could not turn around and say he cannot pay the whole amount which was sued for.. However , I think, the fact that it was obviously monies paid monthly during study leave does make a difference .The fact that it is a loan(staff loan as argued by the plaintiffs) should I would want to believe make the difference, as staff loans are usually taken in bulk and paid by installments with minimal interest. There can be no doubt that these monies were paid over in installments and if they were so paid this was the natural course of operation

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between the parties and thus ought to be pay in Installments . For this reason I don't think that it should be doubted that it should be paid in installments. There is also a general tenor from all the correspondence as to the mode of payment being by installments except there seems to be a disagreement as to the quantum per installments . Exhibit GH4 and GH5 states the plaintiff's bank's position . This being the case from both the defence and the affidavit in support of the application it seems to me that the period for which the defendant received monthly payments span 41 months i.e. from August 2001 - December 2004. Even if, Foakes Vs Beer were to apply it would appear that there is enough consideration as he will be paying the debt in 36 monthly installments rather then 41.

I note also that the plaintiff's were prepared to accept Le 1,736,091.88 but the defendant was prepared to pay only Le 1,000,000.00 per month for 36months and yet still, when the plaintiff received just Le 1,000,000.00 they accepted it. I find it strange that the plaintiff chose to accept the Le 1,000,000.00 without drawing the defendant's attention that it was being short paid as they expected payment of Le 1,736,091.88 per month instead of Le 1,000,000 but chose to accept it for 4 months down the line as initial payments. Could this be a case acquiescence in view of the fact that it could have even been paid in 41 months and later for one reason or the other they changed their minds? At least these short payments could have been brought to the notice of the new employers. Thus the issue of abandoning the promise and suing to recover did not arise at. this stage as by exhibit GH 4, last paragraph, the plaintiff had set out its course of action or remedy for non compliance to its terms, if at all. There is also no evidence before this court as to what was paid monthly . There may be more to this case than meets the eye .

I would wish also to point out that there is a variance between what was claimed in the writ of summons intituled CC971/06 B 76 i.e. Le28,299,721 and the plaintiff's affidavit in support which states Le 27,299,721/46 as the claim. Thus the plaintiff by deposing to an amount quite different from that contained in the writ of summons has failed to truly verified the claim which she was in a position to do .

By reason of such a situation as outlined above, I am of the view that the defendant has disclosed such facts as may be deemed sufficient to entitle him to defend on terms as the court may think fit pursuant to order 11 rule 6 of the High Court rules 1960. I hereby order as follows :

1. That liberty to the Plaintiff/Applicant to enter final Judgment against the defendants/ for the sum of Le 27,299,721/46 and costs is refused.

2. Leave to defend the action is hereby granted . In the circumstances I give the following directions .

i) That the issue in this matter be and is hereby limited to what was the actual payment per month during the study leave from August 2001 to December 2004, whether the sum of Le 1,736,091.88 or Le 1,000,000.00 should be the sanctioned monthly payments, or otherwise, as the court may deem fit.

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ii)That an officer of the plaintiff and the defendant himself do attend and be examined upon oath and to produce the policy and /or conditions of service binding on the staff; the bond if ever there was concerning this study leave granted to the defendant.

iii).That Friday the of February 2007 be fixed for the said examinations, 4. No order as to costs